IN 2003, Vicente Salas started work for Sierra Chemical in its production line filling containers with chemicals used for water treatment. The company hires seasonal workers because demand for its products rises during spring and summer. During fall and winter, the seasonal workers are laid off. They are rehired the following year when product demands go up again.
By 2006, Salas had accumulated enough seniority to avoid being laid off. However, in 2006, Salas injured his back and had to be assigned on modified work. Two months after he was released back to full duty, he again injured his back at work. He applied for worker’s compensation. In December 2006, Salas was again laid off as part of the company’s annual staff reduction.
In May 2007, when Salas wanted to return to work, he talked to his supervisor who told him that he wanted Salas to work with them but only if he was a hundred percent well with his back. If not, then he should not show up to work. Salas did not return to work.
Salas sued the employer for disability discrimination and denial of employment in violation of public policy. Salas alleged that the employer failed to make reasonable accommodation for his disability and failed to engage in an interactive process to determine reasonable accommodation. He also alleged that the employer refused to rehire him to punish him for filing a workers’ compensation claim, and to intimidate him and others from bringing such claims.
During the litigation, the employer discovered that when applying for the job, Salas had used a Social Security number that did not belong to him. The employer then asked the court to dismiss the case because Salas did not have a claim since Sierra would not have hired him had it known that he was using a fake Social Security card. Sierra also said the unclean hands doctrine barred Salas from making any claim because of his fraudulent use of another person’s Social Security number.
In opposing the dismissal, Salas said that Sierra knowingly employed undocumented workers. His supervisor told him and other workers that they did not have to worry about any discrepancies with Social Security numbers and so long as the employer was happy with their work, they won’t be fired.
When the Court of Appeal agreed with the employer, Salas appealed to the California Supreme Court. The Supreme Court has agreed to review the case and heard oral arguments from both sides early this month.
In 2002, California passed a law stating that “a person’s immigration status is irrelevant to the issue of liability.” Undocumented immigrants have the same rights and remedies (except for reinstatement to their job) as legal residents. However, the United States Supreme Court had previously decided that undocumented workers cannot recover back pay as a remedy for discriminatory firings. There is currently no law in California that expressly permits a remedy of back pay to the employee who was not authorized to work. Therefore, the California Supreme Court needs to answer the question of whether an undocumented worker cann recover back pay for an employer’s violation of California’s anti-discrimination laws.
One of the concerns of California’s highest court is that employers may knowingly hire undocumented workers, exploit their status, and then later claim they didn’t know of the worker’s undocumented status to avoid liability. As Chief Justice Cantil Sakauye asked: “Why is that not a windfall to the employer?”
We will know the California Supreme Court’s decision in this case by July of this year. Stay tuned.
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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. Atty. Sayas’ Law Office is located at 500 N. Brand Blvd. Suite 980, Glendale, CA 91203. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com.
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C. Joe Sayas, Jr., Esq. is trial attorney who has obtained several million dollar recoveries for his clients against employers and insurance companies. He has been selected as a Super Lawyer by the Los Angeles Magazine, featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements, and is a member of the Million Dollar-Advocates Forum.
